February 11, 2013

PN Business Liability Update

Although health clubs and gyms in New York with more than 500 members are required by law to have Automatic External Defibrillators (AED - a portable medical device for delivery of an electroshock to restore normal heart rhythm), and an employee on premises certified to operate it, a recent decision by the Court of Appeals has held that there is no affirmative duty for the AED to actually be used by the employee in an emergency situation. The case is Miglino v Bally Total Fitness of Greater N.Y., Inc.

That case involved a man who collapsed while near the racquetball courts at a Bally Total Fitness. Kenneth LaGrega, employed by Bally as a personal trainer, was standing at the club's front desk with the receptionist when he learned of this medical emergency. The receptionist immediately called 911, and an announcement was broadcast summoning anyone with medical training to the front desk; the receptionist also brought the club's AED to Miglino's side. As the 911 call was being made, LaGrega rushed to assist the downed member and was met there by two club members with medical training superior to LaGega's. The AED was not employed by anyone. EMTs arrived at the scene and transported the sick member to the hospital but, regrettably, was DOA. The estate of the deceased member (unsuccessfully, as it turned out) sued Bally's.

The risk of heart attacks following strenuous exercise is well recognized, and it has also been documented that the use of AED devices in such instances can be particularly effective if defibrillation is administered in the first few minutes after the cardiac episode commences (see e.g. Balady, Chaitman, Foster, Froelicher, Gordon & Van Camp, Automated External Defibrillators in Health/Fitness Facilities, Circulation Journal of the American Heart Association 2002); however, it is clear that although the presence of AEDs and certified operators are mandatory, the decision as to whether the use of the AED is indicated, is within the operator's discretion. The decision can be read at the link below.


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